Public Order Bill

Lord Garnier Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.


The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.

[Lord Garnier (Con)]

My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.

[Lord Hogan-Howe (CB)]

My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.

Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.

I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I apologise for my slightly tardy arrival.

Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.

I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.

The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:

“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”


I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant

“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”

Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.

Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:

“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”


It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.

[Lord Garnier (Con)]

My Lords, PACE is nearly 40 years old. Is not the training completed?

[Lord Sharpe of Epsom (Con)]

My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.

The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.

In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.